Occam Trial Edition Terms and Conditions

BY CLICKING THE “I ACCEPT” CHECKBOX DISPLAYED AS PART OF THE ORDERING PROCESS, YOU AGREE TO THE FOLLOWING OCCAM CLOUD CLICKWRAP AGREEMENT (“AGREEMENT”). THIS AGREEMENT GOVERNS YOUR USE OF OCCAM TECHNOLOGIES CORP CLOUD SUBSCRIPTION SERVICE, ASSOCIATED APPLICATIONS AND DOCUMENTATION (COLLECTIVELY, THE “SERVICE”). IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY TO THIS AGREEMENT, IN WHICH CASE THE TERM SUBSCRIBER SHALL REFER TO SUCH ENTITY. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THIS AGREEMENT, YOU MAY NOT USE THE SERVICE.IF YOU ARE ACCESSING THE OCCAM CLOUD OFFERING ON A TRIAL, EVALUATION OR DEMONSTRATION BASIS, 1) OCCAM RESERVES THE RIGHT TO TRACK AND VIEW ALL DATA AND SYSTEM USAGE OF THE CLOUD OFFERING DURING THE TRIAL PERIOD; 2) THE CLOUD OFFERING IS PROVIDED “AS IS” AND ALL WARRANTIES ARE DISCLAIMED; AND 3) THIS AGREEMENT AND ACCESS TO THE CLOUD OFFERING MAY BE TERMINATED BY EITHER PARTY AT ANY TIME.  ALL TRIALS, EVALUATIONS AND DEMONSTRATIONS OF THE CLOUD OFFERING MUST BE IN A NON-PRODUCTION ENVIRONMENT AND MUST NOT INCLUDE ANY PROTECTED HEALTH INFORMATION (PHI).

This Cloud Subscription Agreement (“Cloud Subscription Agreement”) is by and between Occam Technologies Corp, with its principal offices at 2100 Manchester Rd Suite 1745 Wheaton, IL 60187 (“Occam”) and the Subscriber identified on the applicable Order Form.  This Cloud Subscription Agreement is effective as of the last date this Cloud Subscription Agreement is signed in the signature block below (“Effective Date”).  Occam and Subscriber may be referred to individually as a “Party” or jointly as the “Parties.”

1. DEFINITIONS  The terms defined in this Section 1 and any other capitalized terms defined in the other sections of this Cloud Subscription Agreement have the meanings stated.
   1. “Agreement” means, collectively, this Cloud Subscription Agreement and any Order Forms.
   2. “Cloud Offering” means Occam’s software (including all updates and enhancements to the same that Occam provides under section 4 of this Cloud Subscription Agreement), the Documentation, and the information technology infrastructure used by the Service Providers to make Occam’s software available to Subscriber over the Internet.
   3. “Data” means the data, information or material that Subscriber or its Users submit to the Cloud Offering under this Agreement.  Data shall not include anything initially provided to Subscriber by Occam.
   4. “Documentation” means content emailed or provided under the documentation section of the Occam website, or other URL as notified to the Subscriber in writing from time to time.
   5. “Order Form” means one or more order forms signed by the Parties in the general form set forth in Schedule 2 hereof.
   6. “User” means an employee, contractor or subcontractor of Subscriber who has a user account in the Cloud Offering allowing him/her to authenticate into the Cloud Offering.
2. SUBSCRIPTION
   1. License. During the term of the subscriptions that Subscriber purchases, Occam grants Subscriber a non-transferable, nonexclusive license to access the Cloud Offering via a username and password over the Internet. Subscriber may use the licenses purchased under this Agreement for Subscriber’s general business purposes, unless the applicable Order Form restricts Subscriber’s use to a particular authorized business purpose (“Authorized Business Purpose”), in which case Subscriber may only use the Cloud Offering in connection with the specified Authorized Business Purpose.
   2. Restrictions.  Except to the extent expressly authorized in this Agreement or in the Documentation, Subscriber may not: (i) reverse engineer, disassemble, decompile or otherwise attempt to access or determine the source code of the Cloud Offering, (ii) operate the Cloud Offering for use by third parties or otherwise operate the Cloud Offering on a service bureau basis, (iv) modify, copy, reproduce or create a derivative from the Cloud Offering, in whole or in part, or (v) allow, permit or assist any party to do any of the foregoing.  In addition, unless expressly authorized by Occam in the applicable Order Form, Subscriber agrees not to use the Cloud Offering in circumstances in which errors or inaccuracies in the content, functionality, services, data or information provided by the Cloud Offering or the failure of the Cloud Offering, could lead to death, personal injury, or severe physical or environmental damage.   You may not use the Cloud Offering if you are competitor of Occam or to provide information about the Cloud Offering to a competitor of Occam, nor may you mask your identity when using the Cloud Offering.
   3. Users Accounts. Only the identified individual associated with a particular User account can access the Cloud Offering using that account.  User accounts may not be shared among individuals, or used to provide access to the Cloud Offering to individuals who are not the individual associated with the corresponding User account.  Subscriber may not activate and de-activate User accounts on a daily or other regular basis in order to circumvent license restrictions.  To the extent that Subscriber configures Occam’s software to be accessed or used through a separate system or interface (e.g. “headless”), users of the Occam software through such separate system or interface must be licensed under this Agreement, regardless of whether such person has an Occam User account or authenticates into the Cloud Offering. If Subscriber exceeds the number of licensed Users set forth in the effective Order Form(s), Subscriber shall purchase such additional User subscriptions necessary to bring Subscriber into compliance, with the date of such purchase retroactive to most recent Order Form between the parties and for a term equal to the longer of the remainder of the term of Subscriber’s current subscription or one year.  Such additional User subscriptions shall be at Occam’s current list fees irrespective of any discounts offered to Subscriber in any Order Form.
   4. Subscriber Responsibilities.  Subscriber must use the Cloud Offering in accordance with all applicable laws. Subscriber is responsible for the password security of User accounts and the level of access granted to an individual User by Subscriber’s Cloud Offering administrators, as well as any other security configurations set by Subscriber. Subscriber is responsible for any violation of this Agreement by its Users.  Subscriber shall promptly report to Occam any copying or distribution of the Cloud Offering in violation of this Agreement that is known or suspected by Subscriber and provide Occam with reasonable assistance to stop such violation.
   5. Security. Occam will maintain an annual Security Risk Analysis report (or other similar or replacement report as the industry adopts) in connection with the Cloud Offering (“SRA Report”). Subject to agreed upon usage terms, Occam will provide Subscriber with access to Occam’s then current SRA Report.  During the term of this Cloud Subscription Agreement, Occam will maintain such security measures identified in the then current SRA Report or, if Occam determines that more effective measures should be implemented, apply such replacement security measures.  Subscriber may perform security testing with respect to the Cloud Offering, but only with Occam’s prior written consent, not to be unreasonably withheld.
   6. Intellectual Property Rights. The Cloud Offering and all intellectual property rights therein are licensed to Subscriber, not sold.  All rights in the Cloud Offering not provided to Subscriber under this Agreement are retained by Occam and its licensors.  Subscriber agrees not to challenge directly or indirectly Occam’s ownership rights in the Cloud Offering or its ability to license or provide the Cloud Offering in whole or in part on Subscriber’s own intellectual property rights or those of Subscriber’s affiliates, agents, or clients, nor shall Subscriber use the Cloud Offering for the purpose of allowing another party to challenge Occam’s ownership rights in the Cloud Offering or its ability to license or provide the Cloud Offering in whole or in part based on such other party’s intellectual property rights.
3. DATA As between the Parties, the Data belongs to Subscriber.  Subscriber is responsible for responding to any notices sent to Subscriber (or any User) by any third party claiming that the Data violates such party’s rights.  Subscriber grants Occam a worldwide, irrevocable, royalty-free, nonexclusive, sublicensable right during the term of this Cloud Subscription Agreement to use the Data as necessary to perform this Agreement.  Occam shall backup the Data on a nightly basis.   The Data shall be retained for at least twenty eight (28) calendar days.
4. CHARGES AND PAYMENT OF FEES   Fees and charges are due and payable within 30 calendar days of Occam’s invoice date.  Amounts not timely paid shall incur interest at the lower of 1.5% per month, or the highest amount permitted under applicable law.  All fees and charges are exclusive of all taxes, levies, or duties imposed by taxing authorities (“Taxes”).  Subscriber is responsible for paying all such Taxes, excluding only Taxes based solely on Occam’s income, at point of sale.  Any exemption to such Taxes is dependent upon Occam’s receipt of legally required documentation of such exemption. All payments due under this Agreement shall be made without any withholding, unless required by law.  If Subscriber is required to withhold, Subscriber will provide Occam with documentation evidencing payment. If, and to the extent, that Occam is unable to claim an income tax credit for the full amount withheld, Subscriber shall pay the unrecouped amount to Occam.  Except as expressly set forth in this Agreement, all orders for licenses and services are non-cancelable and all payments are non-refundable.
5. CONFIDENTIALITY
   1. Confidential Information. “Confidential Information” means any information disclosed in writing or orally by one Party (the “Discloser”) to the other Party (the “Recipient”) and includes (a) information marked as confidential, (b) the Cloud Offering and the Documentation, (c) the terms of this Agreement (except as necessary to enforce the terms hereof), and (d) information that is reasonably understood to be confidential under the circumstances of disclosure or the nature of the information disclosed.
   2. Non-Disclosure. The Recipient agrees to use the same degree of care to avoid unauthorized use or disclosure of the Discloser’s Confidential Information as it uses to protect its own information and data of like importance, but in no event using less than a reasonable degree of care (with respect to Occam’s obligations in connection with the Cloud Offering, such reasonable degree of care shall be defined as the measures identified in the then current SRA Report).  Acting in accordance with the foregoing standard, the Recipient agrees to disclose the Discloser’s Confidential Information only to its employees or Users (or, in the case of Occam, authorized subcontractors) who (i) have a need to know the same, and (ii) are subject to binding confidentiality obligations with the Recipient that are at least as restrictive regarding limitations on use and disclosure as those in this Section.
   3. Exceptions. The foregoing restrictions will not apply to information that (a) is known to the Recipient at the time of receipt, (b) has become publicly known through no wrongful act of the Recipient, (c) has been rightfully received from a third party authorized to make such communication without restriction, (d) has been independently developed by the Recipient as evidenced by written records, (e) has been approved for release by written authorization of the Discloser, or (f) is required by law to be disclosed; provided that if the Recipient is required to disclose the Discloser’s Confidential Information pursuant to an order under law, the Recipient must, if lawful, promptly notify the Discloser and cooperate in all reasonable respects with the Discloser’s requests in connection with obtaining a protective order.
6. TERM, TERMINATION AND SUSPENSION
   1. Term. This Cloud Subscription Agreement shall commence on the Effective Date and, unless terminated earlier as set forth below, shall continue for the duration of any subscription purchased in an applicable Order Form.
   2. Termination.
      1. a. For Cause. Either Party may terminate this Agreement if the other Party breaches  any material  terms and conditions of this Agreement, and fails to cure such breach within 30 calendar days of receiving written notice thereof from the non-breaching Party.
      2. b. Suspension. Upon providing Subscriber with written notice, Occam may immediately suspend Subscriber’s privilege to use the Cloud Offering, which suspension shall be without any liability to Occam if Occam has reason to believe: (i) Subscriber is using the Cloud Offering in any manner to (A) interfere or attempt to interfere with the functionality or proper working of the Cloud Offering, including but not limited to participating in any flooding or denial or service activities of any kind, or (B) engage in, promote or facilitate illegal activities; or  (ii) the Data (A) infringes, violates or misappropriates any rights of Occam or any third party; (B) constitutes defamation, invasion of privacy or publicity, or otherwise violates any applicable law or regulation, or (C) contains malware, viruses, Trojan horses, spyware, worms, or other malicious or harmful code.
      3. c. Effect of Termination. Upon the effective date of termination, Occam may terminate Subscriber’s use of the Cloud Offering, and Subscriber agrees to pay the balance due on Subscriber’s account computed in accordance with applicable Order Form.
7. WARRANTY AND DISCLAIMERS
   1. Disclaimer. THE CLOUD OFFERING IS PROVIDED AS IS WITH NO WARRANTY. TO THE MAXMIMUM EXTENT PERMITTED BY APPLICABLE LAW, ALL WARRANTIES ARE DISCLAIMED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
8. LIMITATION OF LIABILITY  IN NO EVENT SHALL OCCAM BE LIABLE TO SUBSCRIBER UNDER ANY CAUSE OR ACTION (INCLUDING CONTRACT, NEGLIGENCE, TORT OR STRICT LIABILITY) ARISING FROM OR OUT OF THIS AGREEMENT FOR (a) ANY CONSEQUENTIAL, SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE OR EXEMPLARY DAMAGES OF ANY KIND, INCLUDING BUT NOT LIMITED TO LOST PROFITS, AND (b)  ANY DIRECT DAMAGES. THE LIMITATIONS SET FORTH IN THIS SECTION ARE INDEPENDENT OF ANY LIMITED REMEDY SET FORTH HEREIN, SHALL APPLY WHETHER OR NOT A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND SHALL APPLY NOTWITHSTANDING THE FAILURE OF THE ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
9. INDEMNIFICATION
   1. By Occam.
      1. a. Indemnity. Occam shall at its expense indemnify and  defend Subscriber against any claims, legal actions, damages, losses and other expenses (a “Claim”) brought by a third party against Subscriber alleging that the Cloud Offering or Maintenance Services (the “Offerings”) infringe any United States patent, copyright, or trademark rights of such third party.  Subscriber must provide Occam prompt notice of any Claim for which defense is sought hereunder, and provide Occam with sole control of the defense against any such Claim, provided that Occam may not enter into a settlement requiring Subscriber to make payment, take an action, or refrain from acting without Subscriber’s consent, which shall not be unreasonably withheld, conditioned or delayed.  If Subscriber is prohibited by lawful order from continued use of an Offering, or Occam concludes that an Offering infringes the foregoing intellectual property rights of a third party, Occam will, at its option and expense either: (i) procure for Subscriber the right to continue using the Offering, (ii) replace or modify the Offering so that it is no longer infringing, as long as it provides equivalent functionality, or (iii) if options (i) and (ii) are not commercially viable, terminate Subscriber’s license to use the infringing Offering and refund to Subscriber the amount of the then current subscription license fee that was pre-paid and unearned as of the date of termination.
      2. b. Limitation. Notwithstanding the provisions of Section 10.1(a) above, Occam assumes no liability for (i) infringement arising from combinations of an Offering with non-Occam software or hardware, including any of Subscriber’s software or code, (ii) modifications to an Offering made by any party other than Occam, (iii) use of a prior version of an Offering where Occam has offered or provided such current version to Subscriber at no additional cost, or (iv) trademark infringements involving any marking or branding applied by Subscriber or its agents or by Occam at Subscriber’s request.
      3. c. Entire Liability. THIS SECTION 10.1 STATES THE ENTIRE LIABILITY AND OBLIGATIONS OF OCCAM AND THE EXCLUSIVE REMEDY OF SUBSCRIBER WITH RESPECT TO ANY ALLEGED OR ACTUAL INFRINGEMENT OF PATENTS, COPYRIGHTS, TRADEMARKS OR OTHER INTELLECTUAL PROPERTY RIGHTS BY AN OFFERING, OR ANY PART THEREOF.
   2. By Subscriber. Subscriber shall at its expense indemnify and defend Occam against any claim brought by a third party against Occam alleging that the Data infringes the rights of any third party. Occam shall provide prompt notice of any claim for which defense is sought hereunder and will provide Subscriber with sole control of the defense against any such claim, provided that Subscriber may not enter into a settlement requiring Occam to make payment, take an action, or refrain from acting without Occam’s consent, which shall not be unreasonably withheld, conditioned or delayed.
10. NOTICE. Any formal legal notices required or permitted to be given under this Agreement shall be in writing and shall be sufficiently given if sent by first class certified mail, or overnight delivery service using a reputable courier service, postage prepaid to Occam Corporation at 2100 Manchester Rd Suite 1745 Wheaton, IL 60187, attention: General Counsel or to Subscriber at the address indicated on the applicable Order Form.  Each Party will inform the other in writing of any change in the address to which notices should be sent
11. GENERAL
    1. Governing Law and Arbitration. The validity, construction, and interpretation of this Agreement and the rights and duties of the Parties shall be governed by the laws of the state of Illinois, excluding its principles of conflict of laws, and the controlling laws of the United States of America, as applicable.  This Agreement will not be governed by the United Nations Convention of Contracts for the International Sale of Goods, the application of which is expressly excluded.    Any controversy or claim arising out of or relating to this Agreement, or the breach thereof, shall be settled by arbitration in the County of DuPage, IL in accordance with the Rules of the American Arbitration Association (“AAA”) by a single arbitrator to be designated by AAA, and judgment upon the decision rendered by the arbitrator may be entered in any court having jurisdiction thereof.  Any decision by the arbitrator shall be final and binding, and except in cases of fraud or gross misconduct by the arbitrator, the decision rendered shall not be appealable.
    2. Relationship. This Agreement does not create a joint venture, partnership, employment, or agency relationship.
    3. Severability. If any provision of this Agreement is found unenforceable, it and any related provisions will be interpreted to best accomplish the unenforceable provision’s essential purpose.
    4. Waiver. The waiver by either Party of a breach or right under this Agreement will not constitute a waiver of any other or subsequent breach or right.
    5. Assignment. This Agreement shall be binding and inure to the benefit of the Parties and their respective and permitted successors and assigns.  Occam may use subcontractors to assist in performing this Agreement, provided Occam remains responsible for any subcontractor’s compliance with the applicable terms of this Agreement. Neither Party may assign this Agreement without the consent of the other Party, except in the event of a corporate reorganization, merger, acquisition, or sale of all or substantially all of such Party’s assets.
    6. Entire Agreement. This Agreement is the final, complete and exclusive agreement between the Parties relating to the subject matter hereof, and supersedes any previous communications, representations or agreements between the Parties, whether oral or written.  This Agreement may be amended only through a written agreement signed by duly authorized representatives of the Parties. If an Order Form conflicts with this this Cloud Subscription Agreement, this Cloud Subscription Agreement shall take precedence unless the Order Form expressly identifies select provisions of this Cloud Subscription Agreement to be superseded.  The terms of any purchase order supplied to Occam will be null and void.
    7. Force Majeure. Neither Party is liable for failure to perform or for any delay in performing this Agreement due to events outside its reasonable control and not caused by its fault or negligence.
    8. Signature/Counterparts. The Parties agree that electronic signature shall be valid signatures for all purposes hereunder and shall bind the Parties.  This Agreement and any documents related hereto may be executed in counterparts.
    9. Survival. Provisions herein which by their nature extend beyond the termination of this Agreement shall remain in effect until fulfilled.